Ahmed Allatchi and 243 Others v. Chief of Army Staff and 4 Others

Ahmed Allatchi and 243 Others v. Chief of Army Staff and 4 Others, M/64m/92, Nigeria: High Court of Justice of Borno State, 2 September 1993, available at: http://www.refworld.org/docid/3ae6b6f414.html [accessed 2 August 2015]

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Ahmed Allatchi & 243 Others: vs. Chief of Army Staff & 4 Others:

RULING:

This is an application by way of Motion on Notice by the Applicants - 244 of them asking for a declaration that their arrest by Soldiers and Policemen between October 1991 and March 1992 is unconstitutional, illegal, null and void. Secondly a declaration that the subsequent detention of the applicants at the mammy Barracks Camp and Police Stations in Maiduguri or any other receptacle in Nigeria without been charged to court is unconstitutional, illegal, null and void, and contrary to sections 32(1), 33, 37 and 31 of the 1979 Constitution of the Federal Republic of Nigeria.

(3) That the planned deportation of the Applicants is unconstitutional, null and void and contrary to Sections 30(1), 32(1) 33(1), 37 and 31(1) of the Constitution of the Federal Republic of Nigeria and African Charter on Human and Peoples Rights Act Cap 10 of 1990.

(4) An Order for the release of the Applicants by the Respondents from whichever custody they are; immediately.

(5) An Order for perpetual Injunction restraining the Respondents, their agents, servants or privies from deporting or howsoever expelling the applicants from Nigeria to Chad Republic.

(6) An Order directing the respondents jointly and severally to pay to the applicants the sum of N50,000:00 each being compensation for violation of their fundamental Rights and for such further order or orders as the court may deem fit to make.

In the accompanying affidavit, the deponent stated inter alia that the 1st - 130th applicants were severally arrested between October and November, 1991 from their houses in Maiduguri by Armed Military and Police Personnel without been told the reason for their arrest. That the said applicants were thereafter detained at Umarari and Mammy Barracks as well as Ngumari Hajj Camp. That all the applicants 244 of them were arrested at various places and dates by Soldiers and Policemen without any reason told to them and detained in Umarari and Mammy barracks on varuos dates in 1992 without been told the reasons for their arrest.

That the applicants were kept in custody since their arrest without being charged to court for any offence. That he knows as a fact that most of the applicants have been resident in Nigeria for a long time and have their valid residence permits to evidence their stay in Nigeria. That if the applicants were deported to Chad, they could be executed because of political persecution by the present Chadian Leadership. That the police or army has no evidence to sustain any charge against them. That the condition under which the applicants are held in detention are deadly, inhuman and pathetic owing to mal-nourishment and absence of housing and that unless they are released something untoward could fall the applicants.

In a counter-affidavit, a state Counsel in the state Ministry of justice, Ibrahim Matila stated inter alia that he was informed by the Brigade Commander Col. Yusufu Abubakar that there is no Barrack known as Umarari Barracks in Maiduguri of elsewhere in Borno State and also not aware of Mammy Barracks. That the Commander is not aware of the arrest and detention by the Military Officers involving the applicants whom he did not know. That the Commissioner of Police says none of the applicants was arrested by the police. That Sgt. Abba a Prosecutor in the Magistrate Court said he never participated in the arrest and detention of any of the applicants whom he does not know. That there is no record that any of the applicants has any permit to remain in Nigeria.

I have gone through the Notion, the affidavit and the counter affidavit. I have considered the submission of the applicants counsel Mr. Barudu who stated that the applicants are refugees but they are not to be suffered. He said they should be released from Custody. The Respondents were served and they were not in Court to explain why the applicants were arrested and detained. In their counter affidavit they deny arresting and detaining of the applicants. They stated that there is no record that they are permitted to stay in Nigeria, but the deponent in their affidavit stated that there are permits for some of them and that the rest without permit have satisfied all immigration formalities before entering into Nigeria. They are refugees. I think they can't be arrested without been told or charged to Court of Law as provided by the Constitution of the Federal Republic of Nigeria under section 34, which provides the "Every person (not only Nigerians) shall be entitled to personal liberty and on person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.

(a) by execution of sentence or order of a court.

(b) by reason of failure to comply by the order of court etc. etc.

The applicants do not fall under any of the exceptions. I think that their arrest and detention were both illegal, null and void.

(b) that the planned deportation of the applicants is unconstitutional, null and void, also.

(c) It is hereby ordered that the applicants all of them be released from custody by the respondents immediately.

(d) The respondents are hereby ordered and restrained perpetually from deporting or howsoever expelling the applicants from Nigeria to Chad Republic. I will not direct any compensation to be paid but the Applicants must be released immediately.